Published On:Sunday, December 30, 2012
Posted by Sri Lanka Guardian
| by Shenali Waduge
( Views expressed in this article are author own)
( December 30, 2012, Colombo, Sri Lanka Guardian) The logic of declaring anything “independent” must be based on an unwavering commitment to unbiased, devoid of discrimination and ethical judgment in all cases whether they are associated with the 3 pillars of governance or in private/public sector as well as in the daily affairs personal or otherwise of the public. It has become a trend to evade the main theme of any focus by turning issues into a political force thereby attracting an unwarranted number of internal and external players making solutions all the more difficult to reach and distancing any opportunity for rational thinking and action. This politicizing of issues needs to surely stop for a country to progress. The discussion raises the key question of how “independent” the Sri Lanka Bar Association is and how “politicized” is has got. In all matters of integrity conscience and action must work in cohesion.
The recent turn of events exposes the facts that there are matters that need to be addressed before anyone can exercise the act of pointing fingers. It was in 2001 that the Transparency International survey declared Sri Lanka’s judiciary and police one of the most corrupt in South Asia with 100% respondents claiming that they had to pay bribes to the judiciary. A decade on has that scenario changed or does it remain the same or has it reached far worse conditions?
No amount of laws, legislations, bills or what not can change a system of culture where all practitioners and enforcers including the public are corrupt or indulge in some form of corruption. There is hardly a difference in the guilt of a “taker” and a “giver”. The situation is made worse when apex bodies function in ways that dilute the aspired justice.
The Sri Lanka Bar Association has chosen and elected a politician as its President. While it is the right of any attorney to stand for election it questions why no one considers some prima facie facts.
· How “independent” is a Bar Association when it elects a Politician as its President? What level of “independence” can this President/Politician exactly deliver and whose priority does he “work” towards – those that pay him (his clients) or those he takes a salary from (the Public)?
· If the President of the Bar Association is a practicing lawyer who is paid by clients to act in the best interest of the client what is his obligation as an MP towards the public? As members of the public do we know which hat he is wearing and when and how far is he able to act in fairness to the public by virtue of his duty as a Parliamentarian while also satisfying his client who is paying him exorbitant fees to protect the clients interest?
· How “independent” is a Bar Association when its elected President is not only drawing a salary including perks/privileges given by the State at taxpayers cost while also functioning as a practicing lawyer charging fees for his counsel?
· How “independent” is a Bar Association when that President is not only a member of the Main Opposition political party whose job is to oppose the Government and who is also entitled to use his parliamentary privileges as immunity in all that he says inside Parliament?
· Parliamentary Privileges act declares that “No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise” – http://www.parliament.lk/about_us/powers_privileges.pdf - how adversely will this affect the public if the President of the Bar Association takes the side of his client over the interest due to the Public in view of his being elected a MP? 3000 members of the public have been robbed of 26billion and 20 of these victims have committed suicide – where is the justice for them and being a member of the legal team for the accused is not the trust of the public compromised?
· There is a strong case of conflict of interest when the President of the Bar Association is a member of the legal team of the Golden Key case where members of the public have filed a case against it. The same legal team now represents the chief justice. This questions where the interest of the Bar Association President lies and where his interest should be as a priority?
· The President of the Bar Association has also used that parliamentary privilege by challenging a decision taken by the Speaker and filing a case by the Bar Association of Sri Lanka against the Parliamentary Select Committee that is probing impeachment against the Chief Justice. The President of the Bar Association
· This instance calls to mind the situation in Italy where Silvio Berlusconi’s attorneys are members of parliament. What is the situation when defense lawyers/parliamentarians work towards making laws that protect their Premier (client)?
As a politician it goes without saying that the primary interest is to build a support base of potential voters to secure electoral wins. It is no secret that while those that end up winning elections from the rural Sinhala Buddhist vote base, the next strategy is to always flirt with the minority votes totally neglecting the voters that brought them into power.
The judiciary at present is plagued with a suite of calamities, made worse has been the recent results of the law college entrance exam where it is alleged that some malpractice has taken place which has resulted in an unprecedented number of a minority race securing the top slots and gaining over 100 seats to enter the law college. If there is public opinion coupled with aggrieved students as well as young lawyers objecting to the results, why is the Bar Association especially its President silent not having released a statement in this regard? Given that there are objections the rightful thing to do is to call for an independent inquiry while suspending admissions given that there may be a need to redo the paper if it has been leaked?
Since the exam results concerns a minority, is the Bar Association President silent because of his interest in securing his political role or is there other reasons? We do not know because he is wearing too many hats all conflicting with one another at various times given the sensitivity of the positions held. The investigation team should be able to divulge the truth. It is the impartiality that we expect from the Bar Association especially that of its President.
Then there is the revelation by 2 former judges at the Annual General Meeting of the Judicial Service Association on 22 December 2012 that must have certainly piqued all the proud legal fraternity present. Their speeches only confirmed what many amongst the public already accuse the judiciary of and whilst the executive and legislature have been central to most of the public condemnation in the past it appears all is not fine in the annals of the Judiciary as well. Sleeping on the job apart when an innocent man is sentenced to prison by a judge simply to punish the lawyer appearing for him just does not fit the profile of a practice that professes to be “independent” and upholding justice!
Sending a man to prison because the judge did not like the lawyer representing him is a major offence committed by this judge - Who is he, why was he not punished or exposed and is he still giving similar judgments and why has he deserved a promotion? Has this prisoner been released or is he still languishing in prison, what about the compensation he should deserve for being sent to prison for no reason, how unfair to use the plight as an evening speech example when the judicial system should have addressed this miscarriage of justice immediately – where is the justice from the legal fraternity shouting for justice?
Therefore if there is misconduct of justice taking place in Sri Lanka’s judiciary and its services, should its house not be cleansed before it points fingers?
The President of the Bar Association, who is also a member of a political party and an opposition MP is not the only parliamentarian practicing law. There are many in both government and opposition and it does question their ethics in delivering their services.
People do wonder if it is because of the Justice Minister that the animal welfare bill, the anti-conversion bill remains in embryo and is there also a reason why the Law Commission website is not functioning? Ideally no politician should take up positions that would give rise to conflicts of interest – as “learned” men standing for elections they should have a conscience to know the adverse effects.
In the Philippines Section 14, Article VI of its constitution clearly says that ‘No Senator or Member of the House of Representatives may personally appear as a counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies”. It is not difficult to see how conflicts of interests and bad practices can result when those having access to information not privy to others hold portfolios that leave little room for ethics or good governance.
It is the right of anyone to stand for office but 11,000 attorneys of the Sri Lanka Bar Association should have known better than us the amount of conflict of interest likely to rise in electing a politician as its head.
Having said that it is left for that person to realize himself before being pointed of the likely conflicts of interest and to choose his priority and opt to bow out of one gracefully for the chemistry of a politician, as a practicing lawyer and holding the portfolio of the President of the Bar Association does not work too well and goes against every norm of democracy that even the Western critics should have noticed and should have publicly opposed and we wonder again why no one has pointed this out earlier!
All these spell the need for a comprehensive inquiry of the judiciary and legal profession coupled with the need for a national media commission that would eventually help drive proper governance. When these vehicles start performing as they should the other organs automatically will fall in line and the people will be better informed not to elect corrupt politicians.
The “independence of the judiciary” happens when all those in the judiciary function without bias, without malice, without political agendas. But how many of our leaders exactly follow such practices is again questionable – those that we know who have neither conscience nor integrity have no moral right to be pointing fingers.
Simply put the Sri Lanka Bar Association is nothing but a politicized body if it continues to elect practicing politicians as its Presidents – the conflicts of interests are clearly visible and nothing anyone can deny. Assurance of personal behaviors/actions cannot warrant the leadership mantle of an apex body as the Sri Lanka Bar Association to be held by a politician – whether he is in Government or Opposition. It is detrimental to the vision/mission of that body to have a politician cum practicing lawyer holding forte.